No 3 (2023)
- Year: 2023
- Articles: 6
- URL: https://vektornaukipravo.ru/jour/issue/view/40
Full Issue
The excessive use of foreign terms and other negative trends in the constitutional law science
Abstract
The paper covers the analysis and systematization of negative trends related to the methodology and categorical framework of scientific research in the field of constitutional law science. There are very few such studies at the present stage of legal science, and there are practically no such studies in the science of constitutional law. The purpose of the paper is to analyze, systematize, and classify negative trends in scientific research in the field of constitutional law from the point of view of methodology, the conceptual and categorical framework of scientific research and their relationship with the law enforcement practice, as well as the correctness of the language of scientific publications. The author uses historical, sociological, logical, formal legal, system, and comparative approaches, as well as the observation and description methods. The author concludes on the following: 1) the use of foreign-language terms in scientific research can be reasonable or unreasonable; 2) authors introducing and using foreign terms are often guided not by the essence of science as an increment of new scientific knowledge, but by various pseudo-scientific reasons; 3) the increase in the frequency of use of foreign terms is developing into a negative trend cluttering the conceptual and categorical framework of science; 4) the excessive use of foreign terms is a part of the general problem of the state of the conceptual-categorical framework of the constitutional law science; 5) negative trends in the methodology of the constitutional law science affect negatively both its conceptual and categorical framework and the relationship between science and practice, the attitude of legislators and law enforcers to scientific research and science in general.
5-12
Seizure of digital footprints from the Internet and their use in evidence: criminal procedural aspects
Abstract
Currently, the amount of information that Internet users post on it and exchange with each other is increasing. Under certain conditions, this information, can become forensically significant and can be used as evidence in the future. The issue of seizure and procedural recording of such information is not regulated by current legislation, which makes it difficult to use this information as evidence. The purpose of the study is to identify specific features of digital information, special aspects of the process of proof using digital information and digital footprints within the framework of the current criminal procedure legislation. The author considers the information obtained from social networks in the context of digital footprints and digital evidence in criminal procedure. The signs of digital (electronic) evidence have been systematized. The author carried out an analysis of the provisions of Art. 74 of the Criminal Procedure Code of the Russian Federation, as well as of modern scientific approaches to understanding the system and form of evidence in criminal procedure. Having studied law enforcement practice, the author concluded that the existing legal regulation of the use of digital (electronic) evidence in criminal procedure is not effective enough. The analysis of legislation and law enforcement practice regarding the use of digital footprints in evidence allowed formulating several proposals to improve the norms of criminal procedure legislation of the Russian Federation. In particular, the author proposed to enshrine the definition of digital document in the Criminal Procedure Code of the Russian Federation, expand the list of investigative actions, and specify a separate investigative action aimed at detecting digital footprints and recording digital information.
13-19
Pre-trial proceedings in the criminal procedure of Russia: place, role, significance, and development prospects
Abstract
The paper considers the problem of legislative registration of pre-trial proceedings as an independent part of the criminal procedure aimed at achieving its goals and objectives. The criminal procedure unity declared by the legislator, which is manifested in the general purpose of all criminal procedural activities (Article 6 of the Criminal Procedure Code of the Russian Federation), and the continued identification of the criminal procedure with criminal proceedings (Article 1, paragraph 56 of Article 5, Article 6 of the Criminal Procedure Code of the Russian Federation) contradict its mixed nature, create a false impression of the unity of the criminal procedure activities of investigators, prosecutors, and judges, hinder the actual development of adversariality as a principle of exclusively judicial proceedings, negatively affect the quality and efficiency of the criminal procedure as a whole. According to the author, a clear division of pre-trial and judicial proceedings should increase the responsibility of the preliminary investigation bodies and the prosecution office for the effectiveness of pre-trial proceedings, as well as ensure the true independence of the court. Consideration of pre-trial proceedings as an independent type of activity separated from judicial proceedings allows deferring to the judgment of the scientific community the question of the necessity to fix both the goals and objectives specific to each part of the criminal procedure and the formulation of separate groups of principles determining the essence of criminal procedural activity in pre-trial and, separately, in judicial proceedings.
20-27
A refusal to exercise rights under the contract on the basis of the provisions of the Civil Code of the Russian Federation
Abstract
In this study, the author was interested in the legislative approach to the conditions and methods of implementing the provisions of the Civil Code of the Russian Federation (RF Civil Code), which consider the possibility of a refusal to exercise rights under the contract as an exception to the general rule, when such refusal in the future will entail the inadmissibility of repeated exercise of this right for the same reasons. The author analyzed certain norms of the RF Civil Code, when provisions on a refusal to exercise rights under the contract found their application in specific situations. Such norms of the RF Civil Code confirmed the main goal of the legislator when introducing the provisions under study. It consists in ensuring that business entities fully use the freedom of a contract, exercise their rights in the contract at their own discretion, exercise the right of a refusal, but do not seek to abuse the freedom granted to them. As a part of the analysis of the RF Civil Code norms, the author identified the conditions and methods for implementing the provisions on a refusal to exercise rights, the consequences of such a refusal, as well as distinctive features allowing distinguishing the provisions under study from the RF Civil Code provisions on the repudiation of a contract (its execution) as a whole. Conclusions are drawn that allow understanding the legal sufficiency and practical necessity of applying the studied provisions of the RF Civil Code in civil circulation.
28-34
Indictment: procedural purpose
Abstract
The paper analyzes the problems of the procedural purpose of the indictment as a law enforcement act that completes the pre-trial investigation of a criminal case. The relevance of the study is caused by the duplication of the role of the indictment and the decision on indictment as a defendant, which arises from the system of procedural legislation and the common investigative practice, in terms of establishing the scope, content, and boundaries, in other words, determining the subject of the upcoming criminal trial at first instance. Based on the traditional for national criminal justice concept of retaining the institute of indictment as a defendant, the author substantiates the thesis about the misunderstanding of the indictment as a document determining the content and parameters of a criminal complaint made against an accused. The paper clarifies that during the pre-trial investigation, such a role can only belong to the decision on indictment as a defendant. The author analyzes the reasons influenced the emergence of the identified doctrinal-legal dissonance that are associated with the not quite reasonable law-making policy typical for the development of Soviet and post-Soviet criminal justice. The author proposes to reduce the procedural significance of the indictment not to the formulation of the subject of the upcoming criminal trial at first instance, but only to summarizing the results of the pre-trial investigation and the final recognition of its results appropriate for legal proceedings on merits, as well as to determining the moment of formal completion of pre-trial proceedings and the termination of all legal relations inherent in this criminal procedure stage. It is proposed to consider the indictment a reason (legal fact) for the commencement of judicial proceedings. Moreover, the author mentions other purposes of the indictment – law enforcement and organizational and technical.
35-41
Occupation of the highest position in the criminal hierarchy: standard tactical operations in the investigation
Abstract
The authors considered the application of standard tactical operations in the investigation of the occupation of the highest position in the criminal hierarchy. These operations are presented as an element of the forensic methodology for investigating these crimes. The positive effect of their application in the investigation is caused by the information-cognitive approach to modeling a forensic technique. The study distinguished between standard tactical operations and procedures for collecting and evaluating evidence. Standard tactical operations are adapted to emerging investigative situations and combine the most appropriate investigative activities and intelligence surveillance actions recommended by the intelligence surveillance science. The need to develop standard tactical operations is confirmed by examples from investigative practice. On the practical side, the authors touched upon the issues of optimizing the investigation according to the information criterion of reliability and completeness of the evidence obtained. With regard to the investigation of the occupation of the highest position in the criminal hierarchy, the authors proposed standard tactical operations to detain a suspect and other persons involved in a crime, to overcome opposition to the investigation, to carry out investigative prevention and other areas of investigation. Standard tactical operations aimed at detecting and fixing sources of evidentiary information are developed. Such negative factors as the refusal of witnesses from previously presented testimony, the use of connections by a suspect, the concealment and destruction of signs of the occupation of the highest position in the criminal hierarchy by a suspect, etc. are considered. The efficiency of expert examinations assigned at that time, such as forensic criminological, forensic psychological, document management, etc. is shown. The authors proposed tactical and forensic measures to identify the preventive circumstances in the investigation of the occupation of the highest position in the criminal hierarchy.
42-51